Supreme Court Hears Detainee Case

The Supreme Court today heard oral argument in Boumediene v. Bush, an important separation of powers case in which detainees at Guantanamo are challenging the constitutionality of the Military Commissions Act, which prohibits them from challenging the legality of their detention through habeas corpus review in federal courts. The detainees contend that the preclusion of habeas review violates the Suspension Clause of the Constitution, which prohibits the suspension of the writ of habeas corpus except in cases of “rebellion or invasion.” PFAWF has filed an amicus curiae brief in the case in support of the detainees’ constitutional claims.

Today’s oral argument was a verbal duel between former Solicitor General Seth Waxman, representing the detainees, and current Solicitor General Paul Clement, arguing on behalf of the goverment. Clement contended that detainees at Guantanamo have no right to habeas corpus, and that in any event, the review procedures that the government has given them are an adequate substitute. Waxman disputed both of these contentions, noting in particular that detainees have no right to counsel under the government’s procedures and, most important, arguing that there is no constitutional basis for denying habeas corpus review.

Justice Scalia in particular seemed most skeptical of the detainees’ constitutional challenge, repeatedly suggesting that there has never been a case in which habeas review was granted to an alien in a territory not under what he called the “sovereign control” of the United States. Other justices, notably Chief Justice Roberts, seemed concerned that the D.C. Circuit, which had rejected outright the detainees’ claims of entitlement to habeas corpus review, had not ruled on the adequacy of the alternative procedures provided by the government.

Apart from presenting separation of powers issues, the case is also important to the Bush Administration’s claims of extraordinary executive powers in fighting the war on terror. Indeed, playing that hand, Clement expressly argued that the Military Commissions Act was the “best effort of the political branches, both political branches, to try to balance the interest in providing the detainees in this admittedly unique situation additional process with the imperative to successfully prosecute the global war on terror.”